SHAMIR KHAN Versus THE STATE
ORDER
It is alleged by the petitioner that a theft of his three buffaloes was committed. He lodged a complaint under section 397, P. P. C. with Police Station Khanqah Dogran on 5‑3‑1974. After the registration of the case the police recovered the buffaloes from the house of one Rahim Bakhsh. By order dated 9‑3‑1974 the Magistrate ordered to give those buffaloes on sapurdari to the petitioner. The said Rahim Bakhsh moved an application before the Magistrate claiming the ownership of the buffaloes praying that tile case property be given to some other sapurdari. The learned Magistrate by his order dated 20‑3‑1974 directed that the buffaloes in dispute be given in sapurdari to one Sardar Ajmal of Khanqah Dogran. Against this order of the Magistrate the present petitioner filed Cr. R. No. 226 of 1974. My learned brother Aslam Riaz Hussain J by his order dated 8‑7‑1974 dismissed that revision petition in limine having become infructuous in the following circumstances: ‑
"Mr. Talib H. Rizvi, the learned counsel for the respondents, submitted that the accused have, in the meantime, been acquitted and the buffaloes have been given to them and that all the sapurdari proceed ings have, therefore, automatically ended. As such, the revision petition has become infructuous. The learned counsel for the peti tioner also agrees. The revision petition is, therefore, dismissed in limine as having become infructuous."
2. It seems that the petitioners after obtaining the buffaloes on sapurdari from the Magistrate did not return them to the owner from whom they were recovered and consequently a case under section 406, P. P. C. was registered against him on 14-4‑1974. The petitioner, moved an application for bail before arrest before the Sessions Judge who dismissed the same in default on 13‑7‑1974. The petitioner then moved the present petition before this Court on 18‑7‑1974, while admitting this case to regular bearing and issuing notice to the State, the petitioner was granted interim bail by this Court. On 7‑10‑1974, counsel for the petitioner stated that C. R. No. 226 of 1974 had been withdrawn by the petitioner. The A. S. I. who was present in the Court stated that the buffaloes with the petitioner were still to be recovered from him. On this assertion the learned counsel for the petitioner, stated that a week prior to that date petitioner had told him that he (the petitioner) had already parted with the property in dispute. Since the petitioner was not present on that date the counsel prayed for short adjournment to ascertain this fact from him. Consequently, the case was adjourned to 16‑10‑1974. On 16‑10‑1974, the petitioner again was not present in spite of the fact that earlier the case was adjourned only for that purpose. His counsel showed me a medical certificate issued by Dr. Syed Anwar Ali Zaidi of Mandi Dhaban Singh. On this the following order was passed by this Court:
"Last time Mr. Ghulam Murtaza Khan, counsel for the petitioner, took up the plea before me that a week before that, the petitioner had told him that he had already parted with the property in dispute. In order to ascertain this fact the learned counsel got adjournment last time. On the other hand, the Investigating Officer as well as Rahim Bakhsh who claims to be the owner of the buffaloes in dispute, state that Shamir petitioner has not so far returned the buffaloes in question. In this background it is necessary that Shamir petitioner should be personally present before this Court to make a statement in this behalf. The learned counsel undertakes to produce him on the next date of hearing; otherwise be agrees that the interim bail of the petitioner could be cancelled. Adjourned to 24‑10‑1974. The petitioner is directed to be present on that date."
3. On 24‑10‑1974, the petitioner did not appear before the Court although his counsel filed an affidavit of the petitioner dated 24‑10‑1974 attested by an Oath Commissioner of Lahore. It is stated in this affidavit that before the presentation of the present application Zulfiqar Ali Shah, the then Investigating Officer, came to the village of the deponent and rounded up three buffaloes the case property, and another two belonging to the deponent (petitioner). It is further stated that the cage property is not in the custody of the deponet (petitioner) as he had handed oven the same to the local police. The learned counsel told me that the petitioner was present outside the Court and promised to produce him before the Court after the interval. I again took up the case after the interval but the peti tioner did not appear. The learned counsel again asked for little time to produce the petitioner before the Court in order to ascertain the fact whether the buffaloes in question are still with him or not. Accordingly, the learned counsel was given the last opportunity and the case was adjourned for today. The learned counsel for the petitioner has frankly conceded before me that in spite of his best efforts he had not been able to produce the petitioner before this Court although according to him, he was present in his chamber yesterday evening.
4. A. S. I Safdar Hussain who is the Investigating Officer in this case is present. He has filed his affidavit. According to him, the petitioner on 5‑3‑1974 got a false case registered alleging that his three buffaloes were stolen. Three buffaloes were taken into possession from the dera of Rahim Bakhsh who pleaded that the buffaloes belonged to him. The investigation of that case was conducted by the D. S. P. Nankana Sahib who found the case false and came to the conclusion that the buffaloes really belonged to said Rahim Bakhsh and accordingly the case was discharged on 16‑4‑1974. It is further stated in this affidavit that on 8‑4‑1974, a detailed report was submitted before the Illaqa Magistrate about the misappropriation of these buffaloes who on 11‑4‑1974 ordered registration of the present case under section 406, P. P. C. against the petitioner. It is further stated in his affidavit by the A. S. f. that this case earlier was investigated by A. S. I. Muhammad Rafique and since 27‑4‑1974 he was investigating the same. It is also alleged that Shamir Khan petitioner has never joined the investigation.
5. Since in spite of clear undertaking given by the counsel of the petitioner on 16‑10‑1974 and a direction given by this Court the petitioner has failed to attend this Court and has also not joined the investigation so far and the buffaloes are still to be recovered. I am not inclined to confirm the interim bail. Without expressing any opinion on merits, the interim bail granted on 18‑7‑1974 is hereby cancelled and the present criminal miscellaneous application is dismissed.